The mother’s appeal against an order preventing her from initiating contact with her children is dismissed.

In this matter, the trial judge placed significant weight on the children’s wishes when making interim parenting orders that the mother may not initiate contact with the children. The trial judge was entitled to do so based on the evidence before him. Mother’s appeal dismissed.

Background to appeal

Litigation, in this case, has gone on for some years.

The parties separated in 1999; the father filed for final parenting orders. The couple has two children. They were 15 and nearly 11 at the time of the hearing before the trial judge.

There were many applications and hearings. At some point, the mother alleged that the father sexually abused the younger child. Eventually after a long trial in 2005 orders were made that the children live with the father. The mother may have a contact at all times as agreed between the parties and she has time with them four nights every two weeks and half of the school holidays. The parents had joint parental responsibility.

The mother and the older child disagreed in Sept 2006. The child stopped seeing the mother and didn’t see her for about two years until the hearing.

In 2007 the mother filed a fresh application seeking for the children to live with her.

During that time the younger child and the mother argued and they, also did not have contact after that. The father filed for interim orders suspending the previous orders for joint parental responsibility and contact with the mother.

On the day of the hearing in 2008 the trial judge ordered a Family Consultant to speak with the children at the court and heard his evidence after the brief assessment.

The trial judge then made interim orders providing that the father would have sole parental responsibility. The order that the children spend time with the mother was suspended. The children may communicate with the mother when they wish to, but she is not allowed to initiate communication with them.  The trial judge placed significant weight on the wishes expressed by the children that they do not wish to see their mother.

The matter was adjourned to December 2008 to consider an order for supervised contact between the mother and the younger child. The trial was listed for April 2009.

In the meantime ,the mother appealed the interim orders and the trial date was postponed pending the outcome of this appeal.

This is the mother’s appeal against the interim orders. The mother argues that the children’s negative attitude towards her was because of the father’s efforts to alienate the children from her. The father argues that the views expressed by the children were in response to the enormous psychological pressure the mother puts on them.

The Appellant’s (the mother) legal arguments on appeal

  • The trial judge made findings of fact against the mother where the evidence did not support such findings or the evidence was contentious. The evidence was not tested.
     
  • The judge placed too much weight on the wishes expressed by the children.
  • The trial judge erred in that he relied on the “brief recommendation” of the Family Consultant. It was argued that the Family Consultant did not give a considered expert opinion.
  • The trial judge did not give proper reasons for preventing the mother from initiating contact with the children.

Overall it was argued that the trial judge did not exercise his discretion properly when he terminated the mother’s entitlement to regular contact with her children and imposed a regime whereby the mother was deprived of her entitlement to see her children, and she was not able to initiate communication with them.

The respondent’s (the father) legal arguments

The father supported the orders made by the trial judge.

The Court’s findings

  • Resolving the controversy between the mother’s case and the father’s case regarding why the children do not want to spend time with the mother, involves findings of fact. Ultimately the findings made by the trial judge on some of the controversial issues were not the ratio (main reason) for his decision. He made his decision based on the strong views expressed by the children that they do not wish to see the mother. He also had the benefit of the record of affidavit evidence from prior proceedings, and he had the opportunity to assess the personalities of each parent during the hearing.

Although there is substance in some of the mother’s arguments on this point, it is not sufficient for this court to interfere. The decision was not based on this.

  • Regarding the weight attached to the children’s wishes the Court found the following:

The children are aged 15 and 11; both expressed strong wishes not to see the mother face to face. The trial judge expressed his view that a 15-year-old normally acts by his own wishes and that he places great weight on their views. In fact, at that stage, th,e 15-year-old had not seen his mother for more than two years, although they kept in touch by telephone from time to time.

This Court found that it was not inappropriate for the trial judge in exercising his discretion to give significant weight to the expressed views of a 15-year-old child.

When considering the younger child, the evidence was that the child is intelligent and likely to express her own opinions, and not be influenced by the father. The Family Consultant also confirmed that she expressed herself in a manner confirming that she was not influenced. In these circumstances, this Court found that it was not an inappropriate exercise of the trial judge’s discretion to give significant weight to the 11 year old child’s expressed views not to spend time with the mother.

It was noted that although this court accepted the order to suspend contact with the mother, it could have been appropriate to order supervised visits. The trial judge did, however, say that he would consider supervision at the next appearance before him and that the parties in the mean time must consider ways in which the mother can have supervised visits. For this appeal, the trial judge did not err in the weight he attached to the children’s wishes, and it can not be found that he erred in postponing consideration of supervised visits until an Independent Children’s Lawyer was appointed and more evidence was available.

  • Regarding the weight given to the “brief” recommendation of the Family Consultant, this Court held as follows:

It was open to the trial judge to accept the Family Consultant’s evidence concerning the children’s wishes to not see their mother. Although the Family Consultant did not have the opportunity to do a thorough assessment, it, was the only reliable evidence before the judge of the views of the children. Although the mother and the father did not have prior notice of what the Consultant’s evidence would be, and they were unrepresented, they had the opportunity to cross-examine the Family Consultant. The trial judge saw no basis in rejecting the evidence of the Family Consultant. He acknowledged that the Family Consultant could only make recommendations to the extent, and within the limits, of the available timeframe.

  • Regarding the lack of reasons given for preventing the mother to initiate communication with the children the Court held:

The evidence of the younger child was that she did not wish to continue to receive emails from her mother. She was comfortable to receive cards on special occasions “ as long as there’s not a long letter hidden in there saying all sorts of things”. It seemed that the child felt bombarded with emails from the mother. The further evidence from the Family Consultant confirmed this attitude.

It is important to remember that the judge gave his reasons for his findings ex tempore. This means “at the time”, straight after the hearing. The importance of this is that the evidence is fresh in the mind of the judge. He made his orders preventing the mother from initiating contact straight after the hearing. Often at interim hearings were there are time constraints a trial judge has to rely on intuition. The trial judge cannot always merely ignore an assertion because its accuracy is put in issue. He had the opportunity to assess both parties, especially since they are self-represented.

Based on the evidence before the trial judge, it was open to him to make such an order.

Court determinations

The Appeal is dismissed.

This article provides basic information only and is not a substitute for a professional opinion or legal advice. It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym SS & AH has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975(Cth.)

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Alan Weiss - Aussie Divorce

31st March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.